Court hears legal challenge to Chesapeake Bay 'pollution diet'

Timothy B. Wheeler, The Baltimore Sun

— In a challenge to the Obama administration's efforts to jump-start the lagging restoration of the Chesapeake Bay, lawyers for farmers and homebuilders argued in federal court here Thursday that the Environmental Protection Agency overstepped its legal authority and relied on a flawed computer model in setting a pollution "diet" for the ailing estuary.

Lawyers for the American Farm Bureau Federation, the National Association of Home Builders, poultry and pork producers, and other farming groups argued that states in the Chesapeake watershed, not the federal government, should be in charge of deciding how and where to reduce pollution fouling the bay. They also complained that the far-reaching "diet" was rushed into place despite gaps and errors and without giving the public enough time to review and comment on it.

"It will affect urban growth; it affects how agriculture land will be used," said Richard E. Schwartz, one of the industry groups' lawyers.

The pollution diet is generating an unprecedented amount of regulation of what, he said, are "intensely local and expensive decisions" best left to communities to work out themselves.

But lawyers for the EPA, environmental groups and local agencies operating sewage treatment plants defended the agency's role in directing an acceleration of bay cleanup efforts. Without strong federal oversight and threat of sanctions, they pointed out, states had repeatedly missed their pollution-reduction goals since the restoration campaign began nearly 30 years ago.

Kent F. Hanson, a Justice Department lawyer for the EPA, said federal regulators worked closely with state officials in a years-long, open process to develop the pollution-reduction plan. While some states did resist and complain about the EPA's handling of it, he noted that none joined in the farmers' and builders' lawsuit.

Congress directed the EPA more than a decade ago to take a hand in the bay cleanup effort, said Jon Mueller, a lawyer for the Chesapeake Bay Foundation also representing several other environmental groups. Specific pollution reductions ordered for local waters and communities were set by the states, he said.

The court case could well determine how cleanup efforts proceed in the Chesapeake and elsewhere nationwide. Federal officials have said they're considering similar plans for other degraded waterways. That's what worries the national industry groups, who have mounted unsuccessful efforts in Congress to keep the EPA from enforcing its bay diet.

The Chesapeake pollution diet represents the largest and most complex water-quality restoration plan the EPA has ever drawn up, encompassing six states, including Maryland, where 17 million people live, work and play. Critics contend the EPA is using the plan to force states to regulate runoff from farms and other lands, which Congress never authorized the agency to do.

"If they can do it here, they can do it anywhere, on any scale," said Don Parrish, a spokesman for the American Farm Bureau Federation, which filed suit to block the bay diet in January 2011, soon after the EPA finalized it.

"We're not saying we don't want to clean up the water, or that states can't do it," he added. "We're saying that EPA can't do it and can't force states to do it."

Though also being pressed to reduce pollution, local and regional agencies operating sewage treatment plants sided with the EPA, arguing the federal diet represents a "holistic" cleanup plan that requires contributions from all sectors of society. If runoff from farms and developed lands isn't better controlled, warned Christopher D. Pomeroy, the agencies' lawyer, the bay will never get restored.

The sides sparred for more than four hours before U.S. District Judge Sylvia H. Rambo, who did not say when she would rule on the case. .

For those crowding the courtroom benches, the stakes were high.

"What goes on here is going to affect our livelihood for generations to come," said Clair Esbenshade, who raises crops and livestock on about 200 acres in central Pennsylvania.

He said he and other growers feared they weren't getting proper credit for what they've already done to keep fertilizer and animal manure from washing into nearby streams and ultimately the bay.

"I don't see there's much more we can do," he added, "other than get out of business."

Kim Coble, a Bay Foundation vice president, said she feared that if the judge sides with the EPA's critics, "it would set us back many decades" in trying to revive the bay's water quality. Federal and state officials would have to go back to the drawing board, she said, with states reassuming their dominant role in deciding how much to do where and how fast. That, she said was "something that's never worked in the past."

Mueller, the bay foundation lawyer, reminded the judge that farmers aren't the only ones whose livelihoods are at stake. At the end of his argument, he displayed photographs of Tangier Island watermen, saying, "Their lives are completely dependent on water quality."